State v. Brewer

• Decision Date: 07 December 1989
• Docket Number: No. 503A88,503A88
• Citation: 386 S.E.2d 569,325 N.C. 550
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Jackie Ray BREWER

Page 569

386 S.E.2d 569

325 N.C. 550

STATE of North Carolina v. Jackie Ray BREWER

No. 503A88.

Supreme Court of North Carolina.

Dec. 7, 1989.

Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from judgment imposing sentence of life imprisonment entered by Rousseau, J., at the 31 May 1988 Criminal Session of Superior Court, Catawba County, upon a jury verdict of guilty of first-degree murder. Heard in the Supreme Court 11 September 1989.

Lacy H. Thornburg, Atty. Gen. by Barry S. McNeill, Asst. Atty. Gen., Raleigh, for the State.

Robert M. Elliot and Ellen R. Gelbin, Winston-Salem, for defendant-appellant.

MEYER, Justice.

Defendant was originally tried at the 29 February 1988 session of the Superior Court of Forsyth County, Judge Julius A. Rousseau presiding. After a two-week trial, the jury deadlocked and the court declared a mistrial. The court granted defendant's motion for change of venue due to excessive publicity, and the case was retried at the 31 May 1988 session of the Superior Court of Catawba County, Judge Rousseau again presiding.

Defendant was convicted of first-degree murder for the death of Vickie White Calhoun under the felony murder rule. The conviction was for murder committed during the act of discharging a firearm into an occupied building, a felony under N.C.G.S. § 14-34.1. During the sentencing phase, the jury recommended life imprisonment, and judgment was entered accordingly. This is a companion case to State v. Thomas, 325 N.C. 583, 386 S.E.2d 555 (1989). The cases were tried separately, and the evidence presented, the theories of the prosecution, certain aspects of the theories of the defense, and the issues submitted to the juries differed in the two cases. In his appeal to this Court, defendant brings forward numerous assignments of error relative to the guilt-innocence phase of his trial. Having performed a careful and thorough review of the record, we conclude that defendant received a fair trial free of prejudicial error.

The State's evidence tended to show that the victim, Vickie White Calhoun, was standing in the living room of her home around 9:10 p.m. on the night of 17 March 1987 when a bullet came through her front window and struck her in the chest, killing her. She and her husband lived on Tobaccoville Road in Rural Hall, a community in northern Forsyth County, and this was one of several shooting incidents that occurred in the county that night. The Forsyth County Sheriff's Department received reports of nine shooting incidents in all, five of which were accounts of shooting into occupied residences.

The neighboring house on Tobaccoville Road was the residence of Lena Cain, which was about 250 yards from the Calhoun house. Mrs. Cain testified for the State that she was in her living room watching television around 9:12 p.m. when she heard a noisy car drive past her house. Shortly thereafter, a shot came through the storm door and struck a picture on the wall. She then called the Sheriff's Department.

Geraldine McBride and Peggy Golden testified for the State. Their homes were also located on Tobaccoville Road. Mrs. McBride testified that she and her son were driving to a convenience store around 8:30 p.m. on the night of 17 March when they ran out of gas at Mrs. Golden's house, approximately one-half mile from the Cain residence. While Mrs. McBride's son was seeking a telephone, Mrs. Golden joined Mrs. McBride in her car on the road where it had stalled. Oncoming cars were forced to pull into the other lane of traffic to pass Mrs. McBride's vehicle. A few minutes later, while the two women were standing in the road beside the disabled car, Mrs. McBride heard the sound of one gun shot. Mrs. Golden heard two shots about ten seconds apart. The women then testified that a car approached them a few seconds after they heard the gun shots, traveling slowly as it passed them in the opposite traffic lane. Mrs. McBride described the car as a light-colored, medium-sized, four-door vehicle with vertical taillights. When Mrs. McBride was later shown a picture of the Plymouth Valiant defendant had been a passenger in that night, she confirmed that its taillights matched the ones she had observed. She further testified that the car made more noise than it should for the speed it was traveling. She described the passenger in the front seat as a person with "brown bushy, shaggy hair."

The State also presented testimony from Robert Rouch, a truck driver who was traveling north on Highway 52 that night. As he approached the third exit leading to Rural Hall, the Westinghouse Road overpass, he saw a medium-sized vehicle stop on the bridge above his traffic lane. Westinghouse Road merges into and becomes Tobaccoville Road. As Rouch approached the exit, a shot was fired from the vehicle on the bridge, and the bullet lodged in Rouch's windshield. Rouch transmitted an alert over his citizens band radio and got a reply from Douglas Sells, a fellow truck driver who was at a nearby truck stop. Sells testified that he saw a car near the bridge contemporaneously with the shooting. When he first noticed the car, it was headed toward the bridge. Shortly thereafter, he heard a loud shot and immediately heard Rouch's urgent message. He jumped into his cab. He then saw a car--which he described as being medium sized, shaped like a box, and pale blue in color--pass him going in the direction of Rural Hall. The engine made a loud, sputtering sound.

The State's ballistics evidence tended to show that defendant purchased a revolver from a man named Eddie White on the day before the shootings, 16 March. This gun, the bullets taken from the victim's body and the Cain residence, and a cartridge casing found at the bridge overpass were sent to the State Bureau of Investigation crime lab. There it was determined that the bullets from the victim's body and the Cain house were not fired from the gun which defendant had bought on 16 March. Nor was the spent cartridge casing from this particular gun. The State countered these findings with testimony from an acquaintance, Sheila Marshall, that defendant had another gun, a silver automatic pistol, in his possession earlier on the day of the shootings.

Eddie White testified for the State that he saw defendant on the night of the shootings at approximately 6:00 p.m. Defendant asked White where he could buy bullets for the gun that White had sold him, and White recommended the K-Mart on Peters Creek Parkway in Winston-Salem. White further testified that he saw defendant the next morning, and defendant bragged about the fact that he had gone target shooting the night before. White testified that defendant stated that he had been in Rural Hall at some point during the course of the evening, although he admitted on cross-examination that he had failed to include this piece of information in his initial handwritten statement to the authorities.

Raleigh Wright, a fellow inmate at the county jail at the time defendant was awaiting his trial, testified that defendant had confided in him that he was guilty and that he owned both an automatic pistol and a revolver on the night of the shootings.

State's witness Donald Stout was a codefendant who entered into a plea arrangement in which the State dismissed his murder charge in exchange for his testimony. He provided eye-witness testimony that defendant fired between ten and fifteen shots over the course of the evening from the front passenger seat of a light blue 1972 Plymouth Valiant owned and driven by Lillian Thomas. Stout and three children were the remaining passengers in the car.

Stout testified that he had known defendant for two months prior to 17 March. On that night, at approximately 8:00 p.m., Stout was at Dunkin' Donuts on Peters Creek Parkway in Winston-Salem when defendant asked him if he wanted to "go party." He then joined defendant, Lillian Thomas, and the three child passengers in Lillian Thomas' car. According to Stout, Lillian Thomas purchased marijuana in Rural Hall shortly before 9:00 that evening. Shortly after the three adults finished smoking three marijuana cigarettes, Stout heard a gun discharge and what sounded like a bullet ricocheting off a metal sign. He looked up to see defendant aiming a gun out of the car window. Stout noted that defendant continued shooting a pistol out of the passenger window of Thomas' car for approximately an hour. During this hour, defendant fired twelve to fifteen shots at several houses, at a truck from the Westinghouse Bridge overpass on Highway 52, at an R.V. trailer court, and at numerous stores. In response to the State's request, Stout identified a picture of the Kye residence and testified that Thomas had pulled into the Kye driveway and that defendant had then fired a shot at the house. Stout then testified that defendant had shot at the McGee residence, which he recognized by the satellite dish in the front yard. Most significantly, Stout identified the Calhoun residence from a photograph and stated definitively that defendant "aimed for the lights" as instructed by Lillian Thomas when shooting at this and other houses. He recognized two distinguishing characteristics of the Calhoun home: a stone facade and a round stained glass window.

Defendant testified in his own behalf. His underlying defense was alibi. He asserted that he was not in Rural Hall on the night of the fatal shooting, but was in fact in another part of the county, on Highway 150 between Winston-Salem and Kernersville. When the car was just outside the city limits of Winston-Salem, he pulled a revolver out of his jacket pocket and emptied all five rounds into a street sign. Defendant testified that there were houses in the area, but that they were set back from the road and none of them were in his line of fire. On the way back to Winston-Salem from Kernersville, defendant again shot at a street sign. There were no houses around; in fact, there was only a lake on the...